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April 23, 2007

Will Ohio have its planned execution?

As always, ODPI is keeping up with the latest twists and turns concerning Ohio's death penalty.  Today that means tracking decisions from the Ohio Supreme Court and the federal district court denying stays to James Filliagi, who is making a last-ditch attempt prevent his scheduled execution tomorrow.  The best read today comes from US District Court Judge Greg Frost's decision (available here) denying Filliagi's effort to join the Cooey suit seeking an examination of Ohio's lethal-injection protocol.  Here are my favorite sentences from that opinion:

To be certain, today's decision no doubt provides fodder for the argument that the law often follows form over substance.  But this argument rings hollow given that this litigation has so often been about, or at least should have been about at every level of review, the application of the law in a consistent manner free from subjectivity or whim and guided only by reasoned adherence to stated objective rules.

We will likely get decisions from the Sixth Circuit and SCOTUS before tomorrow's scheduled 10am execution.  Right now I am inclined to predict that Ohio will soon be joining Texas and Oklahoma as the only states to execute anyone in 2007.

UPDATE: ODPI now reports here that the Sixth Circuit has refused Filliagi's request for a stay.

April 23, 2007 at 05:32 PM | Permalink


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Can someone, anyone, explain how today's execution was delayed by 20-30 minutes? No stay was ever issued and the official statement was, "we're waiting for a ruling from the U.S. Supreme Court." Doesn't seem like you can refuse to follow the dictates of the execution warrant without a stay -- where's the authority for the delay?

Posted by: LonesomeClerk | Apr 24, 2007 11:16:37 AM

It's done out of courtesy, and extremely stupid courtesy at that.

Posted by: federalist | Apr 24, 2007 11:28:05 AM

Time of death: 11:23 a.m. -- 4,838 days after the murder he committed -- 4,275 days after the day he was sentenced to death -- 2,826 days after the Ohio Supreme Court upheld his death sentence -- wonderful system we have

Posted by: LonesomeClerk | Apr 24, 2007 11:52:26 AM

I don't see the problem. Unless, you want to maximize the time it takes to kill someone, or maximize your own power. It isn't as if this guy was running around the country committing crimes, or going to law school.

Posted by: S.cotus | Apr 24, 2007 1:46:12 PM

Federalist, Considering that state AGs (and defense counsel) have a working relationship with the attorney that handles DP stays and appeals, to execute someone while she circulates a petition or game the system while she awaits a final copy of an order seems a tad rude.

And, if AGs started gaming this system, you can bet that all of their procedures would be more closely scrutinzed in the future.

Posted by: S.cotus | Apr 24, 2007 1:48:36 PM

I'm not sure it's gaming the system to execute someone if no Supreme Court stay is in place. And, were I an AG, NFW I make it easier for the Supreme Court to actually stay one of these executions.

And as for closer scrutiny, etc., well, isn't that nice, someone does what the law allows and a court will up the ante.

I can imagine the whining if someone ever did get executed in such an instance if the Supremes were actually going to stay it . . . . but I see no reason why a state should help a murderer's last minute appeals succeed.

Posted by: federalist | Apr 24, 2007 2:07:46 PM

One of the problems with the media, is they see litigation in terms of people that are diametrically opposed to each court acting like wrestlers. In true, most litigators act like gentlemen and officers of the court. So, since an appeal (of an underlying conviction and habeas – but not a 1983 action) is mooted by death, state AGs actually do have a duty to not interfere with the court’s normal process. And, let me tell you, the process IS normal. This drill happens with amazing frequency and regularity.

Frequent litigators know that even the appearance of bad faith will make their future representations next to worthless. Moreover, should one justice even question the good faith of a state AG, they will not be able to live this down in the future. So, people wait 20 minutes before the state-sponsored killing of someone.

Posted by: S.cotus | Apr 24, 2007 2:35:10 PM

Perhaps it's normal, but that's the problem. After years of appeals, these last-minute ones are, by definition, an interference with the state's ability to carry out its judgment. It is not bad faith at all to (a) not delay an execution that has not been stayed and (b) not go out of one's way to be available to deal with faxed stay orders.

And for a court to suggest otherwise or to hold it against said AG shows an appalling arrogance. Filiaggi's last-minute appeals were an abuse. An abuse. He clearly waited far far too long to join in Cooey's suit. And the state had to jump through hoops to deal with it. Holding up an execution so that the Supremes can have their precious say, with the attendant cruelty to those who are expecting it, is wrong.

Were I an AG/Gov., my response would simply be, "Ya snooze, ya lose". And if some Supreme Court Justice got upset about it, too bad. And if he or she decided to get even in other cases, then the appellation "lawless" would fit like a glove.

Posted by: federalist | Apr 24, 2007 2:54:02 PM

Okay, Federalist. If you want to argue that people sentenced to die have an ethnical obligation not to raise a certain legal challenge, go ahead.

The irony of your remarks is that it is frequently argued (and, in fact, is the law) that people must exhaust state remedies. But, to make a good-faith effort to do this, attorneys for both sides must conform to the practices and rules of the state courts. Strangely, you argue that state actors should not conform to the practices of the Supreme Court.

Now, I understand that you are not a lawyer, and I don’t mean this in my usual insulting way. But, perhaps you should simply download the audio files of death penalty oral arguments from Oyez.org. Counsel there (for both sides) does not display the vitriol that you associate. They don’t say, “My clients can kill the defendant.” They focus on the actual arguments, and they answer questions about their client’s positions in a way that they think is credible. You propose that counsel diminish whatever credibility they have by gaming the system.

Would this result in closer scrutiny. Probably. Rather than accept counsel for the government’s representations, injunctions would be issued, there would be more remands on small factual matters. But, if were a lawyer and you advised your clients to behave like this, it would be your call.

Posted by: S.cotus | Apr 24, 2007 3:21:21 PM

Don't feed the trolls.

Posted by: | Apr 24, 2007 6:23:45 PM

S.cotus, at the end of the day, not delaying an execution is not "gaming the system". I get the feeling that you simply feel it's not cricket. And that's a perfectly defensible. What I would like is for you to acknowledge that victims' family members who travel to witness an execution only to have some last minute appeal yank the rug out from under them may have a different view about your cricket rules. What happened to the family in the Hill case was beyond appalling, and I, for one, think that needless courtesy was extended to the Supreme Court. Were I making the decision--no stay would equal execution, and if certain Supreme Court Justices got upset about it-- TFB.

Posted by: federalist | Apr 24, 2007 7:32:47 PM

Victim’s family members have no protected (by statute or by the constitution) interest in watching the defendant die. Their need to watch a killing is irrelevant. Moreover, I have never even heard of a family member suing because they were deprived of watching the condemned slowly draw his last breath as the state kill him. Therefore, I don’t really care about their “needs.” Perhaps if people adopted my suggestion of televising, webcasting, and showing all schoolchildren an execution we could kill two birds with one stone: your need for the death pageant, and my need for public scrutiny of the government. But, nobody seems too interested, and it doesn’t matter much to me.

The thing is that because you are not a lawyer, you are not making the decisions. Most of them seem like a mystery to you. (But hey, I don’t know why non-lawyers do what they do, as I rarely speak to them in person. ) You are appalled. Or “beyond appalled.” Whatever that means.

Posted by: S.cotus | Apr 24, 2007 7:43:19 PM

You're right S.cotus, they have no protected interest. But so what? The Supreme Court has no protected interest in having states it the courtesy of waiting until it has its precious say either. Therefore, an AG or Gov is perfectly within his rights to forego this courtesy. And you are therefore incorrect in saying that the system is being gamed. Moreover, there is no legal obligation on the part of a party to litigation to make service of court orders easier on death row inmates. While it may not be cricket, and it may create more problems for the state than it solves, wardens and governors are under no legal obligation to make it easy for the Supreme Court to make its orders binding. Fax machines can be turned off, and telephones may not be answered. But you seek to impose some quasi-legal obligation on the states to cooperate with murderers. Where is such authority?

You know what is interesting, S.cotus--your incessant insistence that I am no lawyer. I'd love to see you travel in my area. It would be fun.

Posted by: federalist | Apr 24, 2007 8:40:17 PM

Federalist, Courts don’t have protected interests within the meaning of the 5th and 14th. But “protected interest” is a term of art. The reason that you don’t appear to be a lawyer is that you seem to not understand that various words we use are terms of art. You might have been able to pass for some transactional guy that doesn’t understand criminal procedure or litigation in general, but even they would pick up on such terms.

I think it is sort of cute that you are suggesting that officers of the court (i.e. AGs) shut off fax machines and unplug telephones after being properly served with whatever petition is before the court. And by “cute” I mean it is “unethical.” As in Model Rule 3.4(c). Supreme Court Rule 22(6) provides that in the case of applications to individual justices, “The Clerk will advise all parties concerned, by appropriately speedy means, of the disposition made of an application.” Therefore, unless, an AG wants to have to wait to be informed, in writing, of the grant or denial of the stay, they are waiting for the phone call. Likely, executing someone before that time, after being properly served before the schedule killing-time would be contempt.

Posted by: S.cotus | Apr 25, 2007 6:45:38 AM

Executing someone before being informed of the Supreme Court's decision would be contempt? That is ridiculous. There are thousands of motions and appeals filed everyday that will become moot prior to being decided if the State imposes its sentence. This doesn't create an obligation on the part of a prosecuting attorney to avoid the imposition of sentence. Rather, the obligation is on the moving party to seek a stay. Absent that stay being granted, the State has zero obligation to not impose sentence.

This whole "gaming the system" argument is meritless as well. First, there is no legal authority to delay an execution simply because a motion is pending. So, arguably the prosecutor is violating his ethical duties if he delays the execution without legal authority. If the courts or the legislature wanted an execution stayed every time a motion was filed, they could have provided for such a mechanism. They've chosen not to -- to say that it's "gaming the system" by following the parameters set forth by law is simply wrong.

Posted by: LonesomeClerk | Apr 25, 2007 8:27:04 AM

S.cotus thinks his idea of what is "cricket" is enshrined in the law. While that works if you are a member of SCOTUS and you can get 4 others to go along with you (see, e.g., today's decisions). Pretty pathetic, S.cotus, that you cannot whip a transactional guy like me. I'd hate to see you have to negotiate financial covenant definitions.

And how would it be contempt? A murderer's motions are not orders of a court. You criticize me for not citing authority . . . . well, you do worse, you cite things that don't stand for the proposition advanced. That's a big no-no counselor. A lawyer is under no obligation to answer phone calls or to have his fax machine turned on unless he consents to that form of service.

Posted by: federalist | Apr 25, 2007 11:26:08 AM

What, no response S.cotus?

Posted by: federalist | Apr 26, 2007 9:01:35 PM

it coll

Posted by: | Jan 29, 2008 6:30:01 PM

i think cpital punishment is right and every body on the death row should be killed imeditaly- get rid of those people

Posted by: | Jan 29, 2008 6:31:42 PM

i think cpital punishment is right and every body on the death row should be killed imeditaly- get rid of those people

Posted by: | Jan 29, 2008 6:32:37 PM

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